United States v. Patrick John Corp.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0038p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 10-2407

v.

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Defendant-Appellant. -

PATRICK JOHN CORP,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 10-00182-001—Robert Holmes Bell, District Judge.

Argued: September 22, 2011

Decided and Filed: February 9, 2012

Before: MOORE, GRIFFIN, and WHITE, Circuit Judges.

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COUNSEL

ARGUED: Paul Croushore, Cincinnati, Ohio, for Appellant. Daniel Y. Mekaru,

ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

ON BRIEF: Paul Croushore, Cincinnati, Ohio, for Appellant. Daniel Y. Mekaru,

ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Patrick John

Corp entered an unconditional guilty plea to the government’s charge that he sexually

exploited a minor in violation of 18 U.S.C. § 2251(a). The district court imposed a

within-Guidelines, 360-month sentence. Corp now raises an as-applied Commerce

Clause challenge to his conviction, arguing that the government’s failure to demonstrate

a sufficient interstate nexus resulted in a lack of federal jurisdiction. He also contests

1

No. 10-2407 United States v. Corp Page 2

the length of his sentence on both procedural and substantive grounds. In his procedural

challenge, Corp argues that the district court improperly applied two provisions of the

United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”): (1) the four-level

enhancement under § 2G2.1(b)(4) (2009), for an offense involving materials that depict

sadistic or masochistic conduct; and (2) the five-level enhancement under § 4B1.5(b)(1),

for engaging in a pattern of activity that involves prohibited sexual conduct. Corp’s

accompanying substantive-reasonableness argument centers on the assertion that Corp’s

sentence is unreasonable in light of other defendants’ sentences for similar offenses.

Because the district court considered only Corp’s conduct and did not apply

§ 2G2.1(b)(4) based on the objective nature of the photographs at issue, we agree that

the district court’s application of the four-level enhancement was in error. We therefore

VACATE Corp’s sentence and REMAND for resentencing in accordance with this

opinion.

I. BACKGROUND

On July 15, 2010, Corp entered an unconditional guilty plea to the government’s

charge that he violated 18 U.S.C. § 2251(a) by producing sexually explicit photographs

of a fifteen-year-old girl during a sexual encounter that took place in July 2009.

According to a Presentence Investigation Report (“PSR”), Corp met the minor, S.H., on

an adult-only dating website sometime in summer 2009. At that time, S.H. told him she

was eighteen years old, and the two agreed to meet. S.H. indicated that on the date of

their arranged meeting, Corp picked her up at her grandfather’s residence and drove her

to his home. Shortly after arriving, the two engaged in various sexual acts, including

sexual intercourse. After engaging in the sex acts, S.H. recalled that Corp took twenty

to thirty nude photographs of her in sexually explicit positions. S.H. also stated that over

the course of their encounter, Corp repeatedly asked if he could urinate in her mouth and

that she reluctantly acquiesced after Corp promised to allow her to spit out the urine

immediately afterward. S.H. testified that after Corp performed the act, however, he

grabbed her mouth and forced her to swallow. Corp has disputed this fact. Although he

No. 10-2407 United States v. Corp Page 3

admitted to urinating accidentally in S.H.’s mouth, he denied having forced her to

swallow and instead stated that he brought her a towel in which to dispose of the urine.

In early October 2009, the Michigan Department of State Police (“MSP”)

received a report from a Department of Human Services case worker indicating that S.H.

was having sexual relations with two adult men. After S.H. disclosed her encounter with

Corp to the MSP, officers executed a search warrant for Corp’s residence. During the

search, they seized a large number of sexually explicit photographs of women, Corp’s

laptop, and various other items. On the laptop, law enforcement later discovered about

18,000 images, including photos of S.H. with Corp’s penis penetrating her mouth and

photographs of S.H.’s face after Corp had ejaculated on it. The search also uncovered

a CD-ROM with seven images of another young female, five of which depicted her

performing oral sex on Corp. The young female in the photo had orthodontic braces, and

the government asserted that it believed her to be under the age of eighteen but was

unable to confirm her identity. Corp countered that of the 18,000 photos discovered on

his computer, the only ones involving a minor were those of S.H. Although he admitted

to having an interest in younger women, he denied ever targeting underage girls.

Corp was convicted of a previous child-pornography offense in July 1999 after

he pleaded guilty to violating 18 U.S.C. § 2252(a)(4)(B) by taking sexually graphic

pictures of a seventeen-year-old girl. The PSR described the previous case as involving

photos of the seventeen-year-old in the nude and in suggestive positions on the bed with

her legs spread apart. A government exhibit containing the actual photos, however,

shows the girl engaging in sexual intercourse with Corp and in oral sex with another

woman. A separate exhibit contains an excerpt from the 1999 plea hearing, in which

Corp admitted that the girl in the photographs was only seventeen. That conviction was

later dismissed on the ground that the charges lacked a sufficient nexus to interstate

commerce to justify federal jurisdiction. See United States v. Corp, 236 F.3d 325 (6th

Cir. 2001).

Applying the November 1, 2009 edition of the Guidelines, the PSR

recommended a base offense level of 32 under § 2G2.1(a). The PSR added two levels

No. 10-2407 United States v. Corp Page 4

because the offense involved a minor, who was fifteen years old, § 2G2.1(b)(1)(B), and

another two levels because the offense involved “the commission of a sexual act,”

§ 2G2.1(b)(2)(A). Based on the photos of Corp’s penis penetrating S.H.’s mouth and

those of Corp’s semen on S.H.’s face, the PSR included a four-level enhancement under

§ 2G2.1(b)(4), for depictions of sadistic or masochistic conduct. In addition, because

the probation officer determined that Corp had sexually exploited at least two minors,

the PSR recommended a five-level enhancement under § 4B1.5(b), for “engag[ing] in

a pattern of activity involving prohibited sexual conduct.” Finally, the PSR subtracted

two levels for acceptance of responsibility, § 3E1.1(a), and another level for Corp’s

timely notification of his intent to plead guilty, § 3E1.1(b).

Over Corp’s objections, the district court applied the § 2G2.1(b)(4) and

§ 4B1.5(b) enhancements. Rather than adopting the PSR’s justification for applying

§ 2G2.1(b)(4), however, the district court appeared to rely exclusively on S.H.’s

description of the urination act, which was not in fact depicted in any of the photographs.

After determining that the enhancements applied, the district court calculated Corp’s

total offense level after adjustments to be 42. Although the Guidelines range for a total

offense level of 42 and a criminal history category of I is 360 months to life, the

statutory maximum for a conviction under 18 U.S.C. § 2551(a) is 30 years. Thus, after

considering the recommended Guidelines range and statutory maximum and addressing

the 18 U.S.C. § 3553 factors, the district court imposed a sentence of 360 months of

imprisonment.

II. ANALYSIS

A. Corp’s Unconditional Guilty Plea Waived His Commerce Clause Challenge

on Appeal

We first address Corp’s arguments on the Commerce Clause issue. Relying

primarily on his earlier case, United States v. Corp, 236 F.3d 325 (6th Cir. 2001), Corp

argues that § 2251(a) is unconstitutional as applied because his case lacks a sufficient

nexus to interstate commerce. Specifically, Corp asserts that the mere fact that his

camera and computer traveled in interstate commerce is not enough to permit federal

No. 10-2407 United States v. Corp Page 5

jurisdiction. The government responds that Corp’s voluntary and conditional guilty plea

waived his right to raise the Commerce Clause issue. Furthermore, the government

contends that even if we were to consider the constitutional challenge, it is without merit.

We review de novo the question whether a defendant has waived his right to

appeal. United States v. Martin, 526 F.3d 926, 932 (6th Cir.), cert. denied, 129 S. Ct.

305 (2008). Because Corp entered an unconditional guilty plea, we conclude that he has

waived his right to raise his Commerce Clause argument on appeal.

“Generally, a voluntary and unconditional guilty plea ‘bars any subsequent non-

jurisdictional attack on the conviction.’” Id. (quoting United States v. Pickett, 941 F.2d

411, 417 (6th Cir. 1991)). Although a defendant may enter a conditional guilty plea that

reserves the right to appellate review of an adverse determination in the district court,

the defendant must affirmatively preserve such challenges if he wishes to present them

on appeal. Id. at 416; see also FED. R. CRIM. P. 11(a)(2). If the defendant fails to obtain

“a court-approved reservation of issues for appeal,” the guilty plea waives any

subsequent challenge to the prosecution that does not pertain to the fundamental question

of the court’s jurisdiction. Martin, 526 F.3d at 932 (internal quotation marks omitted).

Although Corp maintains that he has properly raised a jurisdictional challenge

to the felony information on which he was charged, we disagree. To assert a

jurisdictional challenge successfully, “a defendant who enters a guilty plea must

establish that the face of the indictment failed to charge the elements of a federal

offense.” Id. at 934. Corp’s arguments simply do not bring his conviction within this

narrow category of cases that surpass the bar against non-jurisdictional attacks.

Initially, Corp’s assertion that his case lacks the requisite “jurisdictional element”

misses the fact that we have previously held analogous arguments to involve non-

jurisdictional issues subject to waiver. See, e.g., United States v. Turner, 272 F.3d 380,

390 (6th Cir. 2001) (“Although the Hobbs Act’s interstate commerce element is

commonly referred to as a ‘jurisdictional element,’ the failure of the government to

prove a nexus between the crime and interstate commerce is not jurisdictional in a sense

that it deprives the district court of subject matter jurisdiction.”). Indeed, in United

No. 10-2407 United States v. Corp Page 6

States v. Studabaker, 578 F.3d 423 (6th Cir. 2009), we applied these principles to a case

that involved a similar interstate-nexus issue under a related child-pornography

statute—18 U.S.C. § 2252A(a)(5)(B). There, we directly applied Martin and determined

that, in spite of the defendant’s attempt to characterize his claim as impacting our

jurisdiction, the interstate-commerce argument actually presented a non-jurisdictional

issue. Studabaker, 578 F.3d at 429. As a result, the defendant’s failure to reserve that

challenge at the plea hearing waived his right to appellate review. Id. at 429–30; see

also United States v. Sealed Appellant, 526 F.3d 241, 243 (5th Cir.) (holding that the

defendant’s unconditional guilty plea waived his as-applied Commerce Clause challenge

to his conviction under § 2251(a)), cert. denied, 129 S. Ct. 521 (2008).

Perhaps recognizing that Martin and Studabaker foreclose his argument, Corp’s

reply brief attempts to transform his claim into one alleging that the “face of the

indictment failed to charge the elements of a federal offense.” Reply Br. at 9 (quoting

Martin, 526 F.3d at 934). The facts clearly belie that assertion. The felony information

unambiguously lists all of the elements required for conviction under § 2251(a),

including a jurisdictional element expressly indicating that the visual depictions “were

produced using materials which had been shipped and transported in interstate and

foreign commerce,” and that Corp “produced approximately eighteen (18) digital images

of the sexually explicit conduct using . . . a Canon digital camera and Hewlett-Packard

brand laptop computer with components that were manufactured outside the State of

Michigan.” R. 1 (Felony Information at 1–2). At the plea hearing, the government

reiterated these allegations, and Corp pleaded guilty without objecting to them. R. 30

(Plea Hr’g at 5–6). In doing so, Corp effectively admitted to the basis for federal

jurisdiction. See Turner, 272 F.3d at 390 (“Through his guilty plea, [the defendant]

admitted the factual basis for jurisdiction as charged in his indictment. Thus, [the

defendant’s] challenge is nonjurisdictional and has been waived.”). Accordingly, there

No. 10-2407 United States v. Corp Page 7

is no question whether the information properly invoked federal jurisdiction, and Corp’s

unconditional guilty plea waived appellate review of his Commerce Clause challenge.1

B. Reasonableness Review of Corp’s 360-Month Sentence

1. Standard of Review

We review sentences for reasonableness under an abuse-of-discretion standard.

Gall v. United States, 552 U.S. 38, 46 (2007). Reasonableness involves both procedural

and substantive components. See id. at 51. “First, an appellate court must ensure that

the district court did not commit significant procedural error . . . .” United States v.

Brown, 579 F.3d 672, 677 (6th Cir. 2009), cert. denied, 130 S. Ct. 1106 (2010). A

sentence is procedurally unreasonable if, for example, the district court “fail[ed] to

calculate (or improperly calculat[ed]) the Guidelines range, treat[ed] the Guidelines as

mandatory, fail[ed] to consider the § 3553(a) factors, select[ed] a sentence based on

clearly erroneous facts, or fail[ed] to adequately explain the chosen sentence.” Gall, 552

U.S. at 51. We then review for substantive reasonableness. “The essence of a

substantive-reasonableness claim is whether the length of the sentence is ‘greater than

necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United

States v. Tristan-Madrigal, 601 F.3d 629, 632–33 (6th Cir. 2010). Thus, “[a] sentence

is substantively unreasonable if the district court selects the sentence arbitrarily, bases

the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors or

gives an unreasonable amount of weight to any pertinent factor.” Id. at 633 (internal

quotation marks omitted).

In evaluating the reasonableness of Corp’s sentence, “[t]he district court’s

interpretation of the advisory Guidelines is reviewed de novo, and its findings of fact are

1

We pause to note that even if we were to decide Corp’s as-applied challenge, our opinion in

United States v. Bowers, 594 F.3d 522 (6th Cir.), cert. denied, 131 S. Ct. 340 (2010), would easily dispose

of his claim. Corp’s invitation for this court to apply the factors set out in the pre-Gonzales v. Raich, 545

U.S. 1 (2005), case United States v. Corp, 236 F.3d 325 (6th Cir. 2001), completely ignores Bowers, which

rejected a nearly identical as-applied challenge and, in doing so, “recognize[d] explicitly that [Corp] is no

longer the law of the Circuit.” Bowers, 594 F.3d at 524. Sounding the death knell for Commerce Clause

challenges such as this one, we further concluded that we “[could not] envision, after Raich, a

circumstance under which an as-applied Commerce Clause challenge to a charge of child-pornography

possession or production would be successful.” Id. at 530. Thus, even absent the waiver, Corp’s argument

would be destined to fail on the merits.

No. 10-2407 United States v. Corp Page 8

reviewed for clear error.” Brown, 579 F.3d at 677. “Whether the facts found warrant

the application of a particular guideline provision is a legal question reviewed de novo.”

United States v. Coleman, 627 F.3d 205, 211 (6th Cir. 2010), cert. denied, 131 S. Ct.

2743 (2011). If a defendant fails to raise an objection before the district court, however,

our review is only for plain error. Id.

2. Procedural Reasonableness

a. Allegations of Sadistic or Masochistic Conduct Alone Do Not

Justify the § 2G2.1(b)(4) Enhancement; the Offense Must

Involve Materials that Actually Depict Such Conduct

Corp first challenges the district court’s application of U.S.S.G. § 2G2.1(b)(4).

Guideline § 2G2.1(b)(4) provides for a four-level sentencing enhancement “[i]f the

offense involved material that portrays sadistic or masochistic conduct or other

depictions of violence.” “Material” is defined to include “a visual depiction,” and

“minor” includes any individual “who had not attained the age of 18 years.” Id. cmt. n.1.

In support of his argument, Corp argues, among other things, that: (1) S.H.

assented to having the photographs taken and to engaging in the sexual acts; (2) the

images do not portray S.H. grimacing or otherwise showing discomfort or pain and

therefore fail to qualify as depicting sadistic or masochistic conduct; and (3) no image

depicts the act of urination that the district court relied on to impose the enhancement.

Although he concedes that the photos of S.H. with semen on her face depict “disgusting

conduct,” Appellant Br. at 25, Corp asserts that they do not rise to the level of sadistic

or masochistic and that S.H. was “neither degraded nor disgraced by the images at

issue,” id. at 26. Disagreeing with that characterization, the government observes that

“[t]he act of ejaculating on someone’s face is purposefully degrading and humiliating.

[Corp] . . . took several photos of the girl with her face covered with his semen. Those

images depict degrading and humiliating acts and the enhancement of 4 levels was

proper.” Appellee Br. at 21–22.

At the sentencing hearing, the district court’s application of § 2G2.1(b)(4)

appeared to rely exclusively on the urination act, which, as Corp correctly points out, is

No. 10-2407 United States v. Corp Page 9

not depicted in any photograph. Resting entirely on the disturbing nature of that

behavior, the district court applied § 2G2.1(b)(4) without making any further findings

concerning whether the materials themselves displayed sadistic or masochistic conduct;

in fact, the district court even stated that there was no “actual proof of photographs”

depicting the urination act that the court cited to justify the four-level enhancement. R.

31 (Sent. Hr’g Tr. at 12).

Initially, we note that although Corp made a general objection to the district

court’s application of § 2G2.1(b)(4), Corp failed to object to the district court’s

application of the enhancement on the basis of conduct alone. At sentencing, Corp’s

attorney cited cases addressing sadistic or masochistic depictions, but counsel’s

argument as applied to Corp rested more on the nature of Corp’s overall behavior—e.g.,

that there was “no violence, no pain inflicted in the particulars in this case.” Id. at 10.

The district court followed this argument by addressing S.H.’s statements regarding the

urination act. As the following exchange illustrates, rather than redirecting the district

court to the nature of the photographs, defense counsel merely disputed the facts

surrounding Corp’s behavior:

THE COURT: I look at Paragraph 17 [of the PSR] which has not been

objected to in the presentence report, and this S.H. is indicating that she

was asked if he could urinate in her mouth. She stated she refused, but

after repeated requests she allowed him to do so. She stated he agreed

to allow her to spit out the urine immediately afterward. She stated she

was scared and reluctant but allowed him to urinate in her mouth. She

stated he immediately grabbed her mouth and told her to swallow the

urine. She stated she only swallowed it because she was scared and

forced to do it. She stated his voice was very scary and demanding. Did

I read it correctly?

MR. DODGE: Yes, sir.

THE COURT: Has it not been objected to?

MR. DODGE: Your Honor, on that point Mr. Corp has a different

description of what happened and that there was not an act of urination.

THE COURT: So despite the fact that you did not object to this as being

inaccurate, your position is that your client stated that it was enjoyed and

it was not in any way forceful?

MR. DODGE: That there was no forced conduct, Your Honor. Nothing

was done that was non-consensual with the complainant.

No. 10-2407 United States v. Corp Page 10

Id. at 10–11. Based on that exchange, the district court determined the enhancement to

apply, concluding:

[t]he very nature of this is unbelievably disgusting, unbelievably

disgusting from any standpoint. I find that it is—if that’s not sadistic,

masochistic, I don’t know what is. Obviously there’s torture and things

like that, but this for a person who’s under the age of 18, I think this

clearly falls within the four-level adjustment that 2G2.1(b)(4) addresses.

Clearly, clearly. If this doesn’t, then you ask for scars and intentional

infliction, and I think this is as close as you can get without having actual

proof of photographs. I’ve seen photographs before of all kinds of

situations, but this is thoroughly disgusting. I think it’s well involved in

that. Your objection is noted, though, and preserved.

Id. at 11–12. Despite the district court’s clear misapplication of the Guidelines, when

provided the opportunity to make any final legal objections at the end of the hearing,

defense counsel again failed to raise anything more than his earlier general objection to

the enhancement.

To avoid plain-error review, “[a] party must object with that reasonable degree

of specificity which would have adequately apprised the trial court of the true basis for

his objection.” United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004) (internal

quotation marks omitted). We have emphasized the importance of such objections, both

because they give the district court an opportunity to correct its own errors and because

they provide a better record for appellate review. Id. (“A specific objection provides the

district court with an opportunity to address the error in the first instance and allows this

court to engage in more meaningful review.”). In this case, however, we need not

evaluate whether Corp’s objection was sufficient to permit de novo review rather than

the more deferential plain-error review. The district court’s application of § 2G2.1(b)(4)

was erroneous under either standard. While we cannot deny that the district court’s

disgusted reaction to Corp’s behavior was justified, we nonetheless conclude that,

despite its disturbing nature, the undepicted act of urination was irrelevant to the court’s

application of § 2G2.1(b)(4). The district court’s determination to the contrary is alone

enough to warrant remand. Because our cases have not previously set out a

No. 10-2407 United States v. Corp Page 11

comprehensive framework for applying this enhancement, however, we first establish

principles for the proper application of § 2G2.1(b)(4).

Because the Guidelines do not define the phrase “sadistic or masochistic conduct

or other depictions of violence,” we “look to the common meaning[s] of those terms to

determine their application.” United States v. Groenendal, 557 F.3d 419, 425 (6th Cir.

2009) (internal quotation marks omitted). We have previously defined “sadism” as “the

infliction of pain upon a love object as a means of obtaining sexual release.” Id.

(quoting United States v. Lyckman, 235 F.3d 234, 238 n.19 (5th Cir. 2000), cert. denied,

532 U.S. 986 (2001)). Although our earlier cases have generally involved only the

infliction of physical pain, see United States v. Phillips, 383 F. App’x 527, 533 n.2 (6th

Cir. 2010) (unpublished opinion), we do not believe that the ordinary definition of

sadism is so limited. See Merriam Webster’s Collegiate Dictionary 1029 (10th ed.

1995) (defining sadism as “a sexual perversion in which gratification is obtained by the

infliction of physical or mental pain on others (as on a love object)” (emphasis added)).

Indeed, the inclusion of more than just physical pain in this context is consistent with the

precedent of many of our sister circuits. See United States v. Maurer, 639 F.3d 72, 80

(3d Cir. 2011) (noting other circuits’ inclusion of mental harm in the definition of sadism

and indicating the court’s “belief that the application of § 2G2.2(b)(4) is not limited to

circumstances where the pain that would result from the depicted conduct is the result

of sexual penetration by an adult or bondage of a child”); United States v. Freeman, 578

F.3d 142, 145–46 (2d Cir. 2009) (identifying “delight in physical or mental cruelty” as

an ordinary definition of “sadistic” (quoting Webster’s Third New International

Dictionary 2254 (1986)); United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007)

(same); United States v. Rearden, 349 F.3d 608, 615 (9th Cir. 2003) (same); United

States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001) (stating that “the terms ‘violence’

and ‘sadism,’ as ordinarily used, are not limited to activity involving a rope, belt, whip,

chains, or other instruments” and determining that “painful, coercive, abusive, and

degrading” conduct also qualify as “sadistic” under the Guidelines), cert. denied, 535

U.S. 1011 (2002); United States v. Turchen, 187 F.3d 735, 739 (7th Cir. 1999)

(concluding that the terms sadistic and masochistic also include “sexual gratification

No. 10-2407 United States v. Corp Page 12

which is purposefully degrading and humiliating [and] conduct that causes mental

suffering or psychological or emotional injury in the victim” and that the enhancement

may therefore be warranted even when images do not portray any kind of violence);

United States v. Comeaux, No. 10-30234, 2011 WL 3911083, at *2 (5th Cir. Sept. 2,

2011) (unpublished opinion) (observing that “many depictions which are unarguably

sadistic in nature do not involve violence or pain, but rather subjugation and

humiliation”).2

Also warranting application of § 2G2.1(b)(4) are images that contain depictions

of masochistic conduct and images that fall into the catch-all category “other depictions

of violence.” Under a plain-meaning analysis, masochistic images would include those

depicting “a sexual perversion characterized by pleasure in being subjected to pain or

humiliation, esp[ecially] by a love object.” Merriam Webster’s Collegiate Dictionary,

supra, at 714. To round out these foundational principles, we turn finally to the phrase

“other depictions of violence.” Here, however, it is not enough simply to look to

ordinary meaning. Rather, because of its association with the terms “sadism” and

“masochism,” the reach of the phrase “other depictions of violence” is limited by those

definitions. See Lyckman, 235 F.3d at 238. Thus, as the Fifth Circuit aptly observed,

although the “ordinary meaning of ‘violence’ [is] ‘the exertion of any physical force so

as to injure, damage or abuse,’” the term cannot be construed so broadly in the present

context. Id. (quoting Black’s Law Dictionary 1570 (6th ed. 1990)). Instead, citing “[t]he

venerable principle of ejusdem generis,” Lyckman appropriately clarified that “the

general term ‘other depictions of violence’ casts its net no wider than necessary to

capture images akin to those” encompassed by the more specific terms “sadistic” and

“masochistic.” Id.

2

We note that some of the citations in the preceding paragraph involved U.S.S.G. § 2G2.2(b)(4),

which is the enhancement for trafficking, rather than producing materials involving the sexual exploitation

of a minor. Guideline § 2G2.2(b)(4), however, contains the identical four-level enhancement for offenses

involving “material that portrays sadistic or masochistic conduct or other depictions of violence” as the

provision at issue here. Furthermore, because some of the cases involve earlier versions of the Guideline

enhancements, we also observe that both § 2G2.2(b)(4) and § 2G2.1(b)(4) were renumbered in the

November 1, 2004 version of the U.S. Sentencing Guidelines from § 2G2.2(b)(3) and § 2G2.1(b)(3),

respectively. The language in each of those Guidelines remains the same as it was before the 2004

amendment.

No. 10-2407 United States v. Corp Page 13

While the above definitions provide a worthy starting point for sentencing courts

seeking to apply § 2G2.1(b)(4), a few additional principles apply. First, we agree with

our sister circuits that whether a particular image can be classified as portraying sadistic

or masochistic conduct under § 2G2.1(b)(4) is an objective determination. See, e.g.,

Maurer, 639 F.3d at 80; United States v. Raplinger, 555 F.3d 687, 694–95 (8th Cir.),

cert. denied, 129 S. Ct. 2814 (2009); Freeman, 578 F.3d at 146. Thus, the court must

consider what the material at issue actually portrays rather than making subjective

determinations about the thoughts or intentions of the specific individuals being

depicted. In other words, whether an adult in the image is in fact intending to inflict

physical or mental pain and whether the minor in fact experiences such pain are

immaterial. Rather, the court must determine, based on the contents within the four

corners of the image, whether the circumstances being portrayed are such that an

outsider would perceive them as depicting the infliction of pain or humiliation on the

minor. In sum, we hold that in order to apply the § 2G2.1(b)(4) enhancement, a

sentencing court must determine by a preponderance of the evidence that an image or

material (1) depicts sexual activity involving a minor and (2) portrays conduct that

would cause an objective viewer to believe—without regard to the undepicted

circumstances of the sexual encounter—that the pictured activity is inflicting physical

pain, emotional suffering, or humiliation on that minor.

In some cases, the above framework presents a straightforward inquiry. As we

have previously held, cases involving the sexual penetration of prepubescent children

are inherently sadistic. Groenendal, 557 F.3d at 425–26; see also United States v.

Fuller, 77 F. App’x 371, 383–84 (6th Cir. 2003) (unpublished opinion), cert. denied, 541

U.S. 968 (2004). This is because, from the standpoint of an objective viewer, such cases

unquestionably involve “the depiction of a sexual act that is likely to cause pain in one

so young.” Groenendal, 557 F.3d at 425 (internal quotation marks omitted)). The same

is true for images depicting bondage, which, even if engaged in by consenting adults

experiencing no pain at all, would be objectively perceived as portraying a sadistic act.

Cf. Raplinger, 555 F.3d at 694–95 (emphasizing the need to focus on “what the material

No. 10-2407 United States v. Corp Page 14

portrays” rather than permitting the defendant to avoid the enhancement on the basis

that, despite the depiction of bondage, the minor was not actually in pain).

The facts here, however, are more complicated. Although the images involve

conduct that depicts more than ordinary sexual intercourse with a minor—an offense for

which Corp has already been sentenced under U.S.S.G. § 2G2.1(a)—the question is

whether the images of S.H. with Corp’s semen on her face reach the level of objectively

depicting sadistic or masochistic conduct. Although we have never confronted

analogous circumstances, other circuits have found portrayals of somewhat comparable

behavior to fall within these definitions. In United States v. Parker, for example, the

Eighth Circuit determined that an image of “an adult male ejaculating into the face and

open mouth of a crying baby” was a depiction of sadistic conduct because it involved

“the infliction of pain upon a love object as a means of obtaining sexual release.” 267

F.3d at 847 (internal quotation marks omitted). Similarly, United States v. Turchen

concerned an image that depicted a “grimacing prepubescent nude female” with three

males urinating on her face. 187 F.3d at 739 (internal quotation marks omitted). There,

the Seventh Circuit deemed the enhancement appropriate based on the view that the

image portrayed “the infliction of harm, in fact violent harm, both physical and mental,

on the child victim.” Id. at 740. The child’s grimacing expression further conveyed to

any objective viewer a sense that the circumstances involved the infliction of serious

pain.

On the other hand, it is also apparent that the materials at issue in Parker and

Turchen were an order of magnitude different from those at issue here. In this case, the

photographs do not depict a prepubescent child and S.H.’s expression does not seem to

convey what could objectively be perceived as a manifestation of humiliation or disgust.

Furthermore, both Parker and Turchen involved materials that portrayed individuals who

were presently engaged in the sadistic or masochistic conduct. Here, however, the

materials display only S.H.’s face and do not show Corp engaged in the act of

ejaculation. Thus, the conduct that the government identifies as “purposefully degrading

No. 10-2407 United States v. Corp Page 15

and humiliating,” Appellee Br. at 21–22, is not actually depicted in the photographs,

although the photographs do show the results of that conduct.

As this analysis illustrates, evaluating materials pursuant to § 2G2.1(b)(4) often

involves a case-by-case determination. Although the foregoing paragraphs raise some

potential considerations in deciding whether § 2G2.1(b)(4) ultimately applies in this

case, because of the inherently fact-based nature of the inquiry, we do not believe it

prudent for us to resolve the issue in the first instance. Because the district court is

better suited to resolving such questions initially, we instead conclude that the most

appropriate course is to leave to the district court the determination whether the

§ 2G2.1(b)(4) enhancement applies in light of the framework set forth above. On that

basis, we therefore remand for resentencing in accordance with this opinion.

b. The District Court Did Not Err in Determining that Corp

Engaged in a Pattern of Activity Involving Prohibited Sexual

Conduct

Guideline § 4B1.5(b)(1) provides for a five-level increase if “the defendant’s

instant offense of conviction is a covered sex crime . . . and the defendant engaged in a

pattern of activity involving prohibited sexual conduct.” The application notes define

“prohibited sexual conduct” as including “the production of child pornography.”3 Id.

cmt. n.4(A). A pattern of activity may exist “if on at least two separate occasions, the

defendant engaged in prohibited sexual conduct with a minor,” id. cmt. n.4(B)(i), with

“minor” again defined as “an individual who had not attained the age of 18 years,” id.

cmt. n.1. “An occasion of prohibited sexual conduct may be considered . . . without

regard to whether the occasion (I) occurred during the course of the instant offense; or

(II) resulted in a conviction for the conduct that occurred on that occasion.” Id. cmt.

n.4(B)(ii). Because Corp raised an objection to the application of this enhancement both

in his objections to the PSR and at sentencing, we review the factual findings underlying

3

Child pornography, in turn, is defined as “any visual depiction . . . of sexually explicit conduct,”

18 U.S.C. § 2256(8), with the term “sexually explicit” defined in relevant part as “graphic sexual

intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of

the same or opposite sex,” id. § 2256(2)(B)(i).

No. 10-2407 United States v. Corp Page 16

the district court’s application of § 4B1.5(b)(1) for clear error. See Brown, 579 F.3d at

677.

The government points to three separate instances of prohibited sexual conduct

that support the district court’s application of the five-level enhancement: (1) the instant

offense; (2) photographs of a seventeen-year-old girl engaged in sexual acts, which

surfaced in the 1999 case; and (3) pictures of an unidentified, young-looking girl with

orthodontic braces performing oral sex. At sentencing, Corp initially challenged the

second instance by stating that there was no lascivious exhibition of the seventeen-year-

old’s genitals in the photos in the prior case and that it therefore did not count as an

occurrence of prohibited sexual conduct. The government, however, responded with

exhibits containing the photos from the 1999 case, and those photos indisputably refute

Corp’s disingenuous contentions regarding their sexually explicit nature. That the prior

conviction was overturned on Commerce Clause grounds is also of no consequence. Cf.

United States v. White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc) (permitting acquitted

conduct that has been proved by a preponderance of the evidence to be taken into

account when fashioning a sentence), cert. denied, 129 S. Ct. 2071 (2009). The plain

language of § 4B1.5(b)(1) supports application of the enhancement when the

government demonstrates by a preponderance of the evidence that a defendant, on more

than one occasion, produced sexually explicit images of an individual under the age of

eighteen. United States v. Berringer, 393 F. App’x 257, 262 (6th Cir. 2010)

(unpublished opinion) (“The applicability of the pattern-of-abuse enhancement is a

factual determination that the sentencing court need find only by a preponderance of

evidence.”). There is no question that the government successfully met that burden here.

The government also adequately demonstrated the existence of a third instance

of prohibited conduct. The PSR stated that Corp possessed seven images of a young-

looking female performing oral sex. The PSR noted that the female in the photos had

orthodontic braces and appeared to be under the age of eighteen, though authorities had

been unable to confirm that fact. Corp, however, never even attempted to contest these

facts, either in his objections to the PSR or at sentencing. Because Corp failed to

No. 10-2407 United States v. Corp Page 17

produce any evidence to contradict the facts stated in the PSR on this issue, the district

court was entitled to rely on them in fashioning a sentence. United States v. Geerken,

506 F.3d 461, 467 (6th Cir. 2007). Moreover, after reviewing the images, the district

judge also made independent findings as to the age of the girl in the photograph, stating

that the girl with braces “look[ed] about 12 or 13 and maybe even 14 in the picture.” R.

31 (Sent. Hr’g Tr. at 15). Based on our review of the evidence, that finding was not

clearly erroneous.

As the Guidelines language plainly indicates, the sexual encounter with S.H. that

forms the basis for Corp’s present conviction counts as one of the two instances of

prohibited sexual conduct required to support the district court’s application of

§ 4B1.5(b)(1). Thus, citing the above occurrences, as well as testimony that Corp has

been involved with 450 to 500 usually young-looking women, the district court

concluded,

I think there’s a pattern here. There’s clearly a pattern. If there isn’t one

here, I don’t know where you’d find one. . . . [I]t seems to be a pattern of

activity including prohibited sexual conduct with young persons, and the

factual basis that goes back even to that previous conviction this Court

believes is relevant because there appears with that many women and

that many circumstances that the defendant has admitted clearly to be a

pattern. Clearly to be a pattern.

So therefore, I think it can stand. I think it’s been established in

this case. I think the government has presented a sufficient amount of

factual basis and the presentence report substantiates that in this case.

Id. Although when imposing the sentence, the district court appeared to consider Corp’s

entire sexual history—most of which did not involve minors—the court specifically

cited the photos of the girl with braces, the current offense, and Corp’s prior conviction

as support for its application of § 4B1.5(b)(1). Those three instances were more than

enough to justify the five-level enhancement.

No. 10-2407 United States v. Corp Page 18

3. Substantive Reasonableness

Corp’s final argument relates to the substantive reasonableness of his sentence.

His sole argument to support that claim is based on a handful of cases involving

similarly situated defendants who received lesser sentences but were convicted of

arguably more egregious offenses. Predictably, the government responds to Corp’s

argument by pointing out a similar number of cases in which comparable offenses

received much greater sentences.

Because we remand on procedural grounds, we need not wade into this dispute

at this time. See United States v. Taylor, 648 F.3d 417, 433 (6th Cir. 2011). We note,

however, that although national sentencing disparities are undoubtedly a factor under

18 U.S.C. § 3553(a) that sentencing judges must consider, we have previously “criticized

the comparison of the defendant’s sentence to those imposed in other singular cases as

weak evidence to show a national sentencing disparity.” United States v. Rossi, 422 F.

App’x 425, 435 (6th Cir. 2011) (unpublished opinion) (collecting cases). The mere fact

that a defendant cites other cases in which courts determined certain defendants to be

deserving of different sentences does not demonstrate abuse of discretion in the instant

case. See id.; cf. United States v. Lapsins, 570 F.3d 758, 774 (6th Cir. 2009) (“[T]he fact

that a judge in an unrelated case found a specific individual deserving of a downward

departure does not mean that the judge in this case plainly erred by sentencing

[defendant] within the Guidelines after considering the nature of his crime and his

personal characteristics.”). Our remand provides the district judge with the opportunity

to address explicitly this issue raised by Corp.

III. CONCLUSION

Because the district court’s application of § 2G2.1(b)(4) was based solely on

conduct that was not depicted in the photographs, its application of the four-level

enhancement was procedurally unreasonable. Thus, for the reasons discussed above, we

VACATE Corp’s sentence and REMAND for resentencing in accordance with this

opinion.